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Pastore v. Bell Telephone Co.

May 2, 1994

GARY L. PASTORE, AN INDIVIDUAL; NATIONAL SECURITY SYSTEMS CORPORATION, A PENNSYLVANIA CORPORATION, APPELLANTS
v.
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, A PENNSYLVANIA CORPORATION; BELL ATLANTIC CORPORATION, A DELAWARE CORPORATION; RONALD DONALDSON, ROBERT S. FADZEN, JR.; RAYMOND J. WICKLINE; GEORGE CALDWELL



On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civil No. 92-00923).

Before: Sloviter, Chief Judge, Hutchinson, and Seitz, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Chief Judge.

Gary Pastore and National Security Systems Corporation (NASSCO), plaintiffs-appellants, appeal from the entry of summary judgment in favor of defendants-appellees Bell Atlantic Corporation, its subsidiary, Bell Telephone Company of Pennsylvania, and four individual employees on plaintiffs' attempted monopolization claim under section 2 of the Sherman Act, 15 U.S.C. § 2 (Supp. IV 1992).

I.

FACTS AND PROCEDURAL HISTORY

The facts in this case are, for the most part, not in dispute. Pastore established NASSCO in early 1986 to install a sophisticated custom-designed access control communications security network (CDACCSN) for Bell of Pennsylvania, which awarded it a contract for thirty of its facilities. Bell of Pennsylvania told Pastore that it planned to order the same system for all of its 800 facilities if this pilot project was successful and that it might extend to as many as 4,000 facilities in other subsidiaries of Bell Atlantic.

The pilot project was timely completed and Bell of Pennsylvania officials expressed satisfaction with NASSCO's performance. Thereafter, they repeatedly asked NASSCO to surrender the computer source codes and specific proprietary information and technical designs relating to the CDACCSN which NASSCO declined to do, but because Bell of Pennsylvania insisted on some guarantees in the event of NASSCO's bankruptcy, NASSCO agreed to deposit in escrow the requested proprietary information.

Nonetheless, Bell of Pennsylvania ceased doing business with NASSCO and told NASSCO in March 1990 that a project for a Pittsburgh facility had been placed "on hold." In December 1990, Pastore was informed that a security system had been installed by an entity entitled Integrated Access Systems in the Monroeville Revenue Accounting Center, although the site was within the network of facilities to be installed and serviced exclusively by NASSCO. Other already-approved projects which were part of the first planned phase involving installation of the CDACCSN statewide were not carried forward, while none of the work planned for the second or third phase was initiated.

Plaintiffs filed this action in the District Court for the Western District of Pennsylvania alleging that defendants attempted to monopolize the relevant market in violation of section 2 of the Sherman Act,*fn1 as well as under a variety of pendent state law tort and contract theories.*fn2 Defendants moved to dismiss for failure to state a claim under the Sherman Act. The district court issued an order converting the motion to dismiss into a motion for summary judgment as to the Sherman Act claim only. After granting plaintiffs two extensions for further discovery, the court granted the summary judgment motion, holding that the plaintiffs had produced no evidence of a dangerous probability of the defendants monopolizing the relevant market, and dismissed the pendent state law claims without prejudice. Plaintiffs filed this timely appeal.

II.

Discussi ...


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